Wal-Mart Still on Hook for Worker Class Action

     (CN) – A class of Wal-Mart employees who said they received less pay and fewer promotions than men in comparable positions can continue with their amended claims against the company, a federal judge ruled.
     Several women sued Wal-Mart in a San Francisco-based District Court in 2001, claiming the class they sought to represent received less pay and fewer promotions than men in comparable positions.
     A federal judge ruled that the class should encompass “all women employed by Wal-Mart at any time after Dec. 26, 1998,” across the company’s 3,400 stores.
     Wal-Mart argued that the proposed class – an estimated 1.5 million women – was too big to fight, and that employees should file individual lawsuits.
     The full 9th Circuit ruled 6-5 in April 2010 to send the case to trial, ultimately narrowing the original seven plaintiffs to just three as representatives of the certified class. In December, the Supreme Court said it would intervene to decide whether class action is an appropriate forum for individual employees’ claims.
     In June 2011, the high court ruled that the women failed to prove commonality in their complaint, and disbanded the class.
     Since the Supreme Court’s ruling, the women amended their complaint a fourth time.
     In the newest amended complaint, the number of potential class members was greatly reduced, and the plaintiffs added specific information about Wal-Mart’s management structure, as well as specific examples of discrimination.
     Among other arguments, the plaintiffs claim “all California store managers are required to attend centralized management training where they are told that the gender disparity in senior management is attributable to men being ‘more aggressive in achieving those levels of responsibility,’ and are cautioned that efforts to promote women could lead to the selection of less qualified candidates,” according to court documents.
     Wal-Mart moved to dismiss, but U.S. District Judge Charles Breyer denied the motion last week.
     The judge rejected Wal-Mart’s argument that the court should dismiss the action before ruling on a motion to certify the class because the Supreme Court rejected a larger version of the class.
     “Plaintiffs cannot… be faulted for failing to anticipate a significant development in the Supreme Court’s class-action jurisprudence,” Judge Breyer wrote, adding that the plaintiffs should have an opportunity to present evidence in support of their class claims.
     The Supreme Court only decided that plaintiffs’ evidence had not established a general policy of discrimination in Wal-Mart’s nationwide operations, but did not consider the narrowly-defined amended class action.
     “To be sure, the basic theory of Plaintiffs’ claims has changed little, but for both the pattern or practice and disparate impact claims, the Supreme Court’s decision rested not on a total rejection of plaintiffs’ theories, but on the inadequacy of their proof,” Judge Breyer wrote.
     The plaintiffs will have to prove that a group of regional, district and store managers in the “California regions” encompassed by the class, operated under a common policy of gender discrimination.
     The court will hear plaintiffs’ arguments for class certification on February 15, 2013.

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